Recognizing Customary Care Agreements as a Part of Indigenous Self-Governance

“Decision recognizes customary care agreements are ‘part of Indigenous self-governance’: counsel” – The Lawyer’s Daily – April 7, 2022

The recently released decision of M.L v B.T. from the Ontario Court of Appeal made the important finding that customary care agreements form an important part of Indigenous self-governance, and that First Nations need to be involved in the protection and care of children in their communities. Asha James, a partner at Falconers LLP, acted as counsel for the intervenor in the case, Nishnawbe Aski Nation, along with associate Amanda Micallef.

In M.L v B.T., the question before the courts was whether the caregivers of an Indigenous child could make an application under the Children’s Law Reform Act (“CLRA”) for parenting orders. The child, J.T., was born in Thunder Bay, and the hospital made a referral to Dilico Anishinabek Family Care (“Dilico”), which executed a temporary care agreement with J.T.’s biological parents that resulted in her being placed in the care of the appellants.

J.T.’s biological mother wanted her to live with her maternal great aunt. However, the appellants were the only caregivers that J.T. had ever known. The appellants brought an application for a parenting order for J.T. to be able to see her biological parents. However, Dilico brought a motion to strike their application arguing that the appellants were ‘foster parents’ and thus could not make such an application. Originally, at the Ontario Court of Justice level, Justice Danalyn MacKinnon dismissed Dilico’s motion to strike.

Eventually, Justice Grant Huscroft of the Court of Appeal found that Dilico acted without statutory authority, without the legal parents’ consent, and without the timely involvement of Berens River First Nation, of which J.T. is a member.

In an April 7th article from The Lawyer’s Daily, Ms. James also emphasized the court’s recognition of the importance of Indigenous culture and traditions, as customary care agreements are part of a Nation’s “inherent right to protect their children and to have jurisdiction over them and to care for them in a way that’s consistent with their culture and their traditions.” Further, Ms. James noted that the legal profession and the justice system need to recognize that these agreements might look different for First Nations than in a traditional family law context, stating that: “We need to recognize an individuality and a uniqueness of each Nation and each territory and how they chose to care and protect for their kids.”

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